During Watergate, President Richard M. Nixon claimed he didn’t have to turn over the White House tapes because the constitutional separation of powers “precludes judicial review of a President’s claim of privilege.” In other words, Nixon claimed the court couldn’t even consider whether he had to turn over the tapes.
The Supreme Court disagreed. The Constitution “cannot be read to mean in any sense that the President is above the law,” wrote Chief Justice Warren E. Burger. Nixon had to turn over the tapes and that forced him to resign.
During the Clinton sex scandal, the president claimed Paula Jones should not be able to pursue her suit against him while he was in office. Again, the Supreme Court disagreed. Justice John Paul Stevens wrote, the “fiction that ‘the king is …not only incapable to doing wrong, but even of thinking wrong’…was rejected at the birth of the Republic.”
Yet, in the past week, President Donald J. Trump and his lawyers have once again made claims tantamount to arguing the president is above the law.
First came the New York Times’ publication of a memo from Trump lawyers to Special Counsel Robert S. Mueller III claiming the president cannot obstruct justice. The memo said: “The President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
The seemingly harmless phrase that obstructing justice – “would amount to him obstructing himself” – is chilling when one thinks about it. It says the president can’t obstruct justice because he is synonymous with justice. In other words the president is the law.
The quote echoes from an interview an unrepentant Nixon gave journalist David Frost after leaving office:
Frost asked, “Would you say that there are certain situations….where the president can decide that it’s in the best interests of the nation, and do something illegal?”
Nixon replied, “Well, when the president does it, that means it is not illegal.”
That’s what Trump’s lawyers are saying – when the president obstructs justice it is not obstruction of justice.
But that interpretation of the Constitution is directly at odds with the Supreme Court’s decisions in the Nixon and Clinton cases. And it is at odds with the impeachment resolutions drawn up against Nixon and Clinton, both of which alleged obstruction of justice as one of the impeachable offenses.
It also conflicts with the words of George Mason of Virginia, the Founding Father who convinced the Constitutional Convention to add “high crimes and misdemeanors” as justifications for impeachment. Before that, the draft Constitution permitted impeachment only for treason and bribery.
“Shall any man be above justice?” Mason asked. “Shall that man be above it who can commit the most extensive injustice?
After the release of the lawyers’ memo, Trump took things a step farther claiming in a tweet: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”
In fact, many legal scholars disagree. As one expert, Peter Shane of Ohio State, told the New York Times: “We overthrew control by a monarchy, and the Constitution signals in multiple places that the president is subject to law.”
A group of legal scholars wrote last week, “The Office of the President is not a get-out-of-jail free card for lawless behavior.”
And more authoritatively, the Justice Department’s Office of Legal Counsel issued an opinion a few days before Nixon left office stating unequivocally, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
Comedian Trevor Noah ridiculed Trump’s pardon claim in more down-to-earth terms: “It’s like sneezing and then saying bless you to yourself…You can do it, but it’s not right. You wait for someone else to say it.”
Rudolph W. Giuliani, Trump’s lawyer, took Trump’s lofty notions of a president above-the-law to absurd lengths when he told the HuffPost that Trump couldn’t even be indicted “if he shot James Comey.”
But Ronald A. Klain, who served in the Clinton and Obama White Houses, says it’s not the extravagant claims of Trump and Giuliani that threaten the rule of law so much as the acceptance of the claims by congressional Republicans.
As he put it, “Today, the greatest threat to the rule of law is not the reckless claim by Trump’s lawyers of presidential immunity, or the erratic Sunday-show ruminations of his lawyer Rudolph W. Giuliani. What is weakening our government under law is the flaccid response that key players in our system are making to Trump’s above-the-law assertions.”
So what does this have to do with the press?
Several things. First, Trump’s war on the truth and on the press is the means by which he hopes to get away with it – get away with his regal claims of power and his many acts that may constitute obstruction of justice to derail the Russia investigation. Those acts include the admission in his lawyers’ memo that the president dictated the alibi explanation for Donald Trump Jr.’s 2016 Trump tower meeting with a Russian agent where he hoped to get dirt on Hillary Clinton.
Second, if the Congress won’t check the president’s abuses, the press’ watchdog role becomes particularly important as a constitutional check on presidential power.
And third, it is the propaganda that spews from Sean Hannity and other pseudo-journalists that allows the president to invent fantastic conspiracy theories about being the victim of an FBI witch-hunt in a made up scandal called “Spygate.”
To their credit, both Speaker Paul Ryan, R-Wis. and Rep. Trey Gowdy, R-S.C., have dismissed Trump’s claims and supported the FBI’s use of an informant in the Russia investigation. But they’re both leaving Congress and the likely new House Speaker, Kevin McCarthy, R-Calif., shamelessly parrots Trump’s talking points and calls for winding down the investigation.
At the moment Republicans and Fox News consumers are believing the president. A CNN poll from early May showed that Republican support for Mueller’s investigation had decreased from 29 percent to 17 percent between March and May. Meanwhile, 73 percent of Fox news consumers oppose the Mueller probe, according to a poll by Navigator Research.
It is the press’ job to provide the people with the facts they need to make the decisions that govern our democracy. It is an open question whether the mainstream, reputable press of the New York Times and Washington Post is being drowned out by the president’s tweeted fables and Hannity’s rants about Spygate.
Benjamin Franklin’s response to the woman outside the Constitutional Convention comes to mind. She asked if the convention had given the people a monarchy or a republic. “A republic if you can keep it,” he said.